Citation Nr: 0000946
Decision Date: 01/12/00 Archive Date: 01/27/00
DOCKET NO. 98-17 935 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUES
1. Entitlement to service connection for a left hip disorder
as secondary to residuals of fragment wound to left thigh.
2. Entitlement to an increased evaluation for residuals of
fragment wound to left thigh, currently evaluated as
10 percent disabling.
REPRESENTATION
Appellant represented by: Georgia Department of Veterans
Service
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
A. P. Simpson, Associate Counsel
INTRODUCTION
The appellant served on active duty from January 1965 to
January 1968.
This case comes before the Board of Veterans' Appeals (the
Board) on appeal from a June 1998 rating decision of the
Atlanta, Georgia, Department of Veterans Affairs (VA)
Regional Office (RO). In that decision, the RO denied
service connection for left hip disability as secondary to
the residuals of fragment wound to left thigh and continued
the 10 percent evaluation for residuals of fragment wound to
left thigh.
The veteran was scheduled for a personal hearing before a
Member of the Board in November 1999; however, he failed to
appear.
Review of the record reveals that the RO did not expressly
consider referral of the case to the Chief Benefits Director
or the Director, Compensation and Pension Service for the
assignment of an extraschedular rating under 38 C.F.R.
§ 3.321(b)(1) (1999). This regulation provides that to
accord justice in an exceptional case where the schedular
standards are found to be inadequate, the field station is
authorized to refer the case to the Chief Benefits Director
or the Director, Compensation and Pension Service for
assignment of an extraschedular evaluation commensurate with
the average earning capacity impairment. The governing
criteria for such an award is a finding that the case
presents such an exceptional or unusual disability picture
with such related factors as marked interference with
employment or frequent periods of hospitalization as to
render impractical the application of the regular schedular
standards.
The United States Court of Appeals for Veterans Claims (the
Court) has held that the Board is precluded by regulation
from assigning an extraschedular rating under 38 C.F.R.
§ 3.321(b)(1) in the first instance; however, the Board is
not precluded from raising this question, and in fact is
obligated to liberally read all documents and oral testimony
of record and identify all potential theories of entitlement
to a benefit under the law and regulations. Floyd v. Brown,
9 Vet. App. 88 (1996). The Court has further held that the
Board must address referral under 38 C.F.R. § 3.321(b)(1)
only where circumstances are presented which the Director of
VA's Compensation and Pension Service might consider
exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218,
227 (1995). Although the RO did not expressly consider
38 C.F.R. § 3.321(b)(1), the Board has reviewed the record
with these mandates in mind and finds no basis for further
action on this question. VAOPGCPREC. 6-96 (1996).
FINDINGS OF FACT
1. Competent evidence of a nexus between the diagnosis of
degenerative joint disease of the left hip and a service-
connected disability is not of record.
2. Residuals of fragment wound to left thigh is currently
manifested by no more than a moderate muscle wound.
CONCLUSIONS OF LAW
1. The claim for service connection for a left hip disorder
as secondary to residuals of fragment wound to left thigh is
not well grounded. 38 U.S.C.A. § 5107(a) (West 1991).
2. Residuals of fragment wound to left thigh is no more than
10 percent disabling. 38 U.S.C.A. §§ 1155, 5107 (West 1991);
38 C.F.R. §§ 4.7, 4.56, Diagnostic Code 5313 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The appellant contends that his residuals of fragment wound
to left thigh is much worse than the 10 percent evaluation
contemplates. He states that he has constant burning pain in
his left leg. He further states that he had developed a left
hip problem due to the service-connected residuals of
fragment wound to left thigh.
Service medical records reveal that the appellant was wounded
by a Claymont mine in May 1966 with a fragment which lodged
in the left anterior thigh in the area of the quadricep
mechanism mid-shaft with no nerve or artery involvement. The
examiner noted that the appellant had been debrided in
Vietnam with no evidence of drainage or infection in the
wound. The examiner stated that the wound healed, but that
the appellant had continued to have pain in the area of the
wound with the inability to extend his left leg. The
appellant was evacuated to the hospital because of myositis
ossificans in the area of the initial injury. Physical
examination revealed a well-healed scar over the left
anterior thigh. The appellant was unable to actively extend
his left knee past 30 degrees. There was no gross
neurological deficit in the lower extremity. The quadricep
mechanism was markedly weak on the left as compared to the
right, and there was good passive motion and full movement of
the left hip, passively. X-rays of the left femur revealed
some ossification in the soft tissues of the mid thigh along
with an irregular linear density. The ossification was felt
to be secondary to myositis ossificans.
In an October 1966 hospitalization report, it was noted that
the appellant had developed myositis ossificans in the area
of the left anterior thigh, which had become painful. The
examiner stated that the appellant was unable to do deep knee
bends and had weakness in the left leg. The appellant had
been admitted for surgical excision of an oval-shaped mass in
the anterior left thigh. X-rays taken at discharge in
December 1966 revealed no recurrence of myositis. The
examiner noted that the appellant was ambulating without
difficulty.
In an April 1968 rating decision, the RO granted service
connection for residuals of shrapnel wound, left leg, and
assigned a 10 percent disability evaluation.
In VA examination reports in May 1968 and January 1969, the
appellant had full range of motion of the left hip and knee.
In an October 1987 VA hospitalization summary report, the VA
examiner stated that the appellant had full range of motion
in all extremities.
In a July 1996 VA outpatient treatment report, the VA
examiner stated that the appellant was complaining of pain in
the left thigh and groin for the past four to five days. The
appellant reported that he slipped and hurt himself even more
and was in excruciating pain. Examination of the left leg
revealed 2+ pulses, 5/5 strength, and tenderness to palpation
on the left inner thigh. He had full range of motion of the
left hip. There was pain with abduction of the left leg.
Sensation was normal. The diagnostic impression was muscle
strain. In August 1996, the appellant reported left inguinal
and left hip pain. The VA examiner stated that there was
tenderness in the left inguinal area along the inguinal
groove and tenderness over the left anterior hip. The VA
examiner stated that there was mild degenerative joint
disease and that x-rays revealed lipping of the acetabulum.
The assessment was pain probably secondary to degenerative
joint disease.
The appellant underwent a VA examination in December 1996.
The VA examiner noted that the appellant had sustained a
shrapnel wound to the left thigh in service. The appellant
complained of discomfort in the left hip, left knee, left
ankle, and the dorsal aspect of the left foot. The appellant
reported that he could walk but that he got a lot of pain
when he lifted things and that he had a burning feeling in
his left thigh. Upon physical examination, the VA examiner
stated that the appellant had a 16 centimeter by 2 centimeter
scar that was disfiguring and slightly depressed on the left
thigh. Auscultation of the scar revealed no underlying
bruits. The VA examiner stated that the appellant could
squat nearly to full range. Patrick's test was positive on
the left and negative on the right. Range of motion in the
left knee was 0 degrees to 130 degrees. McMurray's sign was
negative. There was no laxity of the cruciate or collateral
ligaments in the left knee. Patellar grinding was positive
on the left. There was roughness of the bearing surfaces of
the left patella, and the VA examiner stated that the
appellant had chondromalacia of the left knee. Hip flexion
was 120 degrees. The circumference of the thighs was 17
inches on the left and 17 3/4 inches on the right. The
circumference of the calves was 14 1/2 inches on the left and
15 inches on the right. The VA examiner stated that the x-
rays of the left hip revealed degenerative joint disease. He
added that the x-ray revealed mild lipping of the acetabular
margin associated with a subarticular pseudocyst. The
superior lateral compartment of the joint was slightly
diminished as well. The diagnoses were degenerative joint
disease of the left hip, and disfiguring scars on the left
thigh, post shrapnel wound in Vietnam with some subjective
complaints as reported.
In a January 1997 treatment report, the VA examiner stated
that the appellant reported pain in the left hip/groin area
for the past five to six months. The appellant stated that
pain relievers were not helping. He described the pain as
burning and radiating down into the left leg. There was pain
to palpation in the inguinal region and pain with movement.
The assessment was left groin pain probably secondary to
muscle strain.
In a February 1998 treatment report, Dr. John G. Heller
stated that the appellant had 5/5 motor strength in the lower
extremities.
The appellant underwent a VA examination in March 1998. The
appellant complained of burning pain around the left thigh
where the incision was and reported weakness and decreased
strength in the left thigh muscles. He stated that the left
leg would give out on him occasionally and that he would have
to catch himself falling. Upon physical examination, the VA
examiner noted that the appellant had an entry and exit wound
in the left lower extremity both anteriorly and posteriorly.
He stated that each scar measured about 13 centimeters. The
VA examiner stated that there was hypersensitivity as to both
scars. The appellant stated he had a burning sensation most
of the time which extended to the anterior aspect of the
suprapatellar region on the anterior aspect of the thigh.
The VA examiner stated that the appellant measured 44
centimeters on the left thigh and 46 centimeters on the right
thigh. The VA examiner stated that the 2 centimeter
difference on the left side represented wasting. He added
that the appellant had good quadriceps strength of up to 4++
and hamstring strength of 4+ on the left side.
Examination of the left knee was free from any pathology.
The VA examiner stated that the appellant's left knee had
full range of motion without pain. The VA examiner stated
that the left hip was equal in range of motion bilaterally.
The impressions were gunshot injury to the left thigh with
weakness of the hamstrings and quadriceps and hyperesthesia
distal to the gunshot wound, both anteriorly and posteriorly.
X-rays of the left hip and femur revealed that the hip joints
were preserved. The osseous structures and soft tissues
appeared unremarkable in the left hip. There was localized
thickening of the cortex at the anterolateral aspect of the
mid shaft of the femur compatible for bony callous formation
probably secondary to the grazing injury to that portion of
the shaft. The examiner noted that there were no missile
fragments identified.
The appellant had an RO hearing in August 1998. The
appellant's representative stated that he and the appellant
felt that the 10 percent evaluation for the residuals of
fragment wound to left thigh was insufficient. He stated
that the appellant had to walk with the aid of a crutch
because of the pain. He added that the appellant had pain in
his hip which they felt was secondary to the injury of the
left thigh. The appellant testified that the pain in his
left thigh was sharp and needle like and on both sides of his
leg. He stated that he had no strength on the left side of
his leg. He stated that his left leg would give out at
times. The appellant stated that when he stood for very
long, that his left leg would hurt enough where he would need
to get off of his feet. The appellant stated that the pain
would shoot up into his left hip. He stated that he had
severe pain both day and night. He stated that he had
difficulty with flexing his left leg. The appellant stated
that no medical professional had stated that his problems
with his hip was due to the service-connected residuals of
fragment wound to left thigh.
I. Service connection
Under 38 C.F.R. § 3.310(a) (1999), service connection shall
be awarded when a disability is "proximately due to or the
result of a service-connected disease or injury . . . ." A
claim for secondary service connection, like all claims, must
be well grounded. 38 U.S.C.A. § 5107(a); Reiber v. Brown, 7
Vet. App. 513, 516 (1995). A well-grounded claim is a
plausible claim, one which is meritorious on its own or
capable of substantiation. Murphy v. Derwinski, 1 Vet. App.
78, 81 (1990). A well-grounded claim for secondary service
connection requires evidence of a current disability as
provided by a medical diagnosis, a service-connected disease
or injury, and competent evidence providing a nexus between
the two. Wallin v. West, 11 Vet. App. 509, 512 (1998).
After having reviewed the evidence of record, the Board has
determined that the appellant's claim for service connection
for a left hip disorder as secondary to the service-connected
residuals of fragment wound to left thigh is not well
grounded. See Reiber and Wallin, both supra. The appellant
has established a current diagnosis of arthritis of the left
hip. The first diagnosis of arthritis in the left hip was in
August 1996. Where the appellant's claim fails is the lack
of competent evidence that establishes that the degenerative
joint disease of the left hip is proximately due to or the
result of the service-connected residuals of fragment wound
to left thigh. The appellant underwent two VA examinations,
in December 1996 and March 1998, in which neither examiner
opined as to the etiology of the appellant's left hip
complaints. Thus, without competent evidence of a nexus
between the diagnosis of arthritis and the service-connected
disability, the nexus element required to well ground the
claim fails. See id.
The Board is aware that in the March 1998 x-ray report of the
left hip, the VA radiologist noted that there was localized
thickening of the cortex at the anterolateral aspect of the
mid shaft of the femur, which was compatible with bony
callous formation "possibly secondary to a grazing injury to
that portion of the shaft." Although the VA radiologist
stated that it was possible that the bony callous formation
was secondary to the grazing injury, he did not establish
that there was a current disability related to the callous
bony formation. Without a diagnosis of a disability as a
result of the callous bony formation, the claim is not well
grounded. See id. Indeed, there was no evidence of a hip
disability on x-ray at that time.
X-rays of the left hip revealed that the hip joints were
preserved. The osseous structures and soft tissues appeared
unremarkable in the left hip.
The only evidence of a nexus between the diagnosis of
arthritis of the left hip and the service-connected
disability are the appellant's statements and testimony. The
Board is aware that the appellant is a combat veteran and is
entitled to the application of 38 U.S.C.A. § 1154(b) (1991).
That section lightens the veteran's evidentiary burden as to
what happened in service, as the veteran, as a lay person,
may provide lay evidence to establish incurrence of a disease
or injury in service See Collette v. Brown, 82 F.3d 389, 392
(Fed. Cir. 1996). However, in Libertine v. Brown, the Court
stated that the "language of section 1154(b) d[id] not seem
reasonably susceptible to the view that it applie[d] to
claims where secondary service connection [wa]s sought."
Libertine, 9 Vet. App. 521, 523 (1996) (citing 38 C.F.R. §
3.310(a)). The Court further stated that a relationship
between one condition and another was not "susceptible to
informed lay observation and thus, for there to be credible
evidence of such a relationship, medical evidence is
required." Libertine, 9 Vet. App. at 524 (citing Reiber, 7
Vet. App. at 516). Therefore, the appellant's own lay
opinion, including his testimony, is not competent and does
not serve to establish a well-grounded claim.
Although the VA does not have a statutory duty to assist a
claimant in developing facts pertinent to the claim when it
is determined to be not well grounded, it may be obligated
under 38 U.S.C.A. § 5103(a) (West 1991) to advise a claimant
of evidence needed to complete his application. This
obligation depends on the particular facts of the case and
the extent to which the Secretary has advised the claimant of
the evidence necessary to be submitted with a VA benefits
claim. Robinette v. Brown, 8 Vet. App. 69 (1995). Here, VA
fulfilled its obligation under section 5103(a) by issuing a
statement of the case in October 1998. In this respect, the
Board is satisfied that the obligation imposed by section
5103(a) has been satisfied. See Franzen v. Brown, 9 Vet.
App. 235 (1996) (VA's obligation under sec. 5103(a) to assist
claimant in filing his claim pertains to relevant evidence
which may exist or could be obtained). See also Epps v.
Brown, 9 Vet. App. 341 (1996) (sec. 5103(a) duty attaches
only where there is an incomplete application which
references other known and existing evidence that pertains to
the claim under consideration); Wood v. Derwinski, 1 Vet.
App. 190 (1991) (VA's duty is just what it states, a duty to
assist, not a duty to prove a claim).
II. Increased evaluation
The Board finds that the appellant has submitted evidence
which is sufficient to justify a belief that his claim for an
increased evaluation for RFW residuals of fragment wound to
left thigh is well grounded. 38 U.S.C.A. § 5107(a) (West
1991). That is, his assertion that his service-connected
disability has worsened raises a plausible claim. See
Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The
appellant has been recently examined and his medical records
have been obtained. See Schafrath v. Derwinski, 1 Vet.
App. 589, 595 (1991). All relevant facts on this issue have
been properly developed and the duty to assist has been met.
38 U.S.C.A. § 5107(a).
Disability ratings are intended to compensate impairment in
earning capacity due to a service-connected disorder. 38
U.S.C.A. § 1155 (West 1991). Separate diagnostic codes
identify the various disabilities. Id. Evaluation of a
service-connected disorder requires a review of the veteran's
entire medical history regarding that disorder. 38 C.F.R. §§
4.1 and 4.2 (1999). Nevertheless, past medical records do
not take precedence over current findings in determining
whether to increase a disability rating, although a rating
specialist is directed to review the recorded history of
disability to make a more accurate evaluation. Francisco v.
Brown, 7 Vet. App. 55, 58 (1994). It is also necessary to
evaluate the disability from the point of view of the veteran
working or seeking work, 38 C.F.R. § 4.2 (1999), and to
resolve any reasonable doubt regarding the extent of the
disability in the veteran's favor. 38 C.F.R. § 4.3 (1999).
If there is a question as to which evaluation to apply to the
veteran's disability, the higher evaluation will be assigned
if the disability picture more nearly approximates the
criteria for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7 (1999).
The Board must note that 38 C.F.R. § 4.56, which addresses
evaluations of muscle disabilities, changed effective July
1997. When a regulation changes after a claim has been filed
but before the appeal process has been completed (which would
apply here), the version most favorable to the claimant will
apply. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991).
See 38 U.S.C.A. § 5110. The Board notes that the RO did not
review the appellant's claim for an increased evaluation for
residuals of fragment wound to left thigh under the old
criteria, as it determined that the appellant's claim for an
increased evaluation was filed in November 1997. However,
the record reflects that the appellant filed a claim for an
increased evaluation in September 1996. Regardless, the
Board notes that the changes made to 38 C.F.R. § 4.56 were
not substantive and thus neither is more favorable to the
appellant's claim. See Heuer v. Brown, 7 Vet. App. 379
(1995).
Under the current regulation, a moderate muscle wound is a
through and through or deep penetrating wound of short track
from a single bullet, small shell or shrapnel fragment,
without explosive effect of high velocity missile, residuals
of debridement, or prolonged infection. 38 C.F.R. §
3.56(d)(2)(i) (1999). Objective findings of a moderate
disability are entrance and (if present) exit scars, small or
linear, indicating short track of missile through muscle
tissue. Id. at (d)(2)(iii). Some loss of deep fascia or
muscle substance or impairment of muscle tonus and loss of
power or lowered threshold of fatigue when compared to the
sound side. Id.
A moderately severe muscle wound is a through and through or
deep penetrating wound by small high velocity missile or
large low-velocity missile, with debridement, prolonged
infection, or sloughing of soft parts, and intermuscular
scarring. 38 C.F.R. § 3.56(d)(3)(i) (1999). Objective
findings of a moderately severe muscle wound are manifested
by entrance and (if present) exit scars indicating track of
missile through one or more muscle groups. Id. at
(d)(3)(iii). Indications on palpation of loss of deep
fascia, muscle substance, or normal firm resistance of
muscles compared with sound side. Tests of strength and
endurance compared with sound side demonstrate positive
evidence of impairment. Id.
A severe muscle wound is a through and through or deep
penetrating wound due to high-velocity missile, or large or
multiple low velocity missiles, or with shattering bone
fracture or open comminuted fracture with extensive
debridement, prolonged infection, or sloughing of soft parts,
intermuscular binding and scarring. 38 C.F.R.
§ 3.56(d)(4)(i) (1999). Objective findings of a severe
muscle wound are manifested by ragged, depressed and adherent
scars indicating wide damage to muscle groups in missile
track. Id. at (d)(4)(iii). Palpation shows loss of deep
fascia or muscle substance, or soft flabby muscles in wound
area. Id. Muscles swell and harden abnormally in
contraction. Id. Tests of strength, endurance, or
coordinated movements compared with corresponding muscles of
the uninjured side indicate severe impairment of function.
Id.
If present, the following are also signs of severe muscle
disability: (A) x-ray evidence of minute multiple scattered
foreign bodies indicating intermuscular trauma and explosive
effect of the missile; (B) adhesion of scar to one of the
long bones, scapula, pelvic bones, sacrum or vertebrae, with
epithelial sealing over the bone rather than true skin
covering in an area where bone is normally protected by
muscle; (C) diminished muscle excitability to pulsed
electrical current in electrodiagnostic tests; (D) visible or
measurable atrophy; (E) adaptive contraction of an opposing
group of muscles; (f) atrophy of muscle groups not in the
track of the missile, particularly of the trapezius and
serratus in wounds of the shoulder girdle; and (G) induration
or atrophy of an entire muscle following simple piercing by a
projectile. Id.
The criteria of 38 C.F.R. § 4.56 are only guidelines for
evaluating muscle injuries from gunshot wounds or other
trauma, and the criteria are to be considered with all
factors in the individual case. Robertson v. Brown, 5 Vet.
App. 70 (1993).
Diagnostic Code 5313 provides evaluations for disability of
muscle group XIII, the posterior thigh group, hamstring
complex of 2-joint muscles: (1) biceps femoris;
(2) semimembranosus; and (3) semitendinosus. 38 C.F.R.
Part 4, Diagnostic Code 5313 (1999). The functions of these
muscles are as follows: extension of hip and flexion of knee;
outward and inward rotation of flexed knee; acting with
rectus femoris and sartorius (see XIV, 1, 2) synchronizing
simultaneous flexion of hip and knee and extension of hip and
knee by belt-over-pulley action at knee joint. Id. This
Diagnostic Code also applies to the posterior thigh group,
hamstring complex of 2-joint muscles: (1) biceps femoris; (2)
semimembranosus; and (3) semitendinosus. Id. This code
provides a noncompensable evaluation for slight muscle
injury, a 10 percent evaluation for moderate muscle injury, a
30 percent evaluation for moderately severe muscle injury,
and a 40 percent evaluation for severe muscle injury. Id.
After having reviewed the evidence, the Board finds that the
preponderance of the evidence is against an evaluation in
excess of 10 percent for residuals of fragment wound to left
thigh. In July 1996, motor strength in the left leg was 5/5.
The appellant had full range of motion in the left hip.
There was pain with abduction of the left leg. In December
1996, the appellant was able to squat nearly to full range.
Range of motion of the left knee was 0 degrees to
130 degrees. Left hip flexion was to 120 degrees.
Auscultation of the appellant's scar revealed no underlying
bruits. Circumference of the thighs was 17 inches on the
left and 17 3/4 on the right. In March 1998, it was noted that
the appellant had two 13-centimeter scars on the left leg,
which were hypersensitive. Circumference of the thighs was
44 centimeters on the left and 16 centimeters on the right.
The appellant had 4++ quadriceps strength and 4+ hamstring
strength.
Reviewing 38 C.F.R. § 4.56(d)(2)(iii), objective findings of
the residuals of fragment wound to left thigh are consistent
with the findings of no more than a moderate disability of
the muscle. The appellant's scars from the shrapnel have not
shown prolonged infection. In July 1996, the appellant had
5/5 motor strength in the left leg. He had full range of
motion of the left hip. In December 1996, it was noted that
the appellant's scar on his right thigh revealed no
underlying bruits. Range of motion of the left knee was
0 degrees to 130 degrees. The appellant could squat nearly
to full range. In March 1998, his quadriceps strength was
noted to be 4++ and hamstring strength was noted to be 4+ on
the left. The appellant's left knee was noted to have full
range of motion without pain. The circumference difference
between the right thigh and the left thigh has been reported
to be 3/4 of an inch in December 1996 and two centimeters in
March 1998. In March 1998, the VA examiner stated that the
difference in size of the thighs was evidence of wasting.
The Board finds that the medical findings of record are
consistent with no more than a moderate muscle disability and
thus no more than 10 percent disabling. See 38 C.F.R. Part
4, Diagnostic Code 5313.
An evaluation in excess of 10 percent is not warranted. The
objective findings of record are not indicative of any more
than a moderate muscle injury. The appellant's motor
strength in the left leg has been determined to be 5/5. He
was able to do almost a full squat in December 1996. His
quadriceps strength was rated as 4++ and hamstring strength
as 4+ in March 1998. The circumference difference between
the right thigh and the left thigh is less than an inch or 2
centimeters. The examinations establish that there is an
absence of sloughing of soft part and the absence of
intermuscular scarring. The examinations have not revealed a
loss of deep fascia or muscle substance. Although a
moderately severe muscle injury contemplates positive
evidence of impairment when compared with the opposite side,
the Board finds that the 10 percent evaluation contemplates
the loss of power or lowered threshold of fatigue when
compared to the opposite side that the appellant has in his
left leg. The loss of strength in the left leg is no more
than moderate.
The Board notes that a separate evaluation for painful motion
with joint or periarticular pathology is not warranted under
38 C.F.R. § 4.59 (1999) because the appellant is in receipt
of a compensable evaluation. It must be noted that 38 C.F.R.
§§ 4.40 and 4.45 (1999) are not applicable because Diagnostic
Code 5313 does not contemplate limitation of motion. See
Johnson v. Brown, 9 Vet. App. 7 (1996); see also DeLuca v.
Brown, 8 Vet. App. 202 (1995); VAOPGCPREC 9-98 (August 1998).
Moreover, symptoms such weakness, loss of power, fatigue-
pain, etc., are specifically contemplated by Diagnostic Code
5313. See 38 C.F.R. § 4.56(c) (1999).
The Board further notes that a separate 10 percent disability
evaluation is not warranted for the scars on the appellant's
left leg. See 38 C.F.R. Part 4, Diagnostic Codes 7803, 7804,
7805 (1999) (superficial scars which are poorly nourished,
with repeated ulcerations; tender and painful on objective
demonstration; or which limit the function of the body part
which they affect warrant a separate 10 percent evaluation).
In December 1996, the VA examiner noted that the appellant's
scars were disfiguring and slightly depressed. The VA
examiner stated that the appellant had subjective complaints
as to the scars. In March 1998, the VA examiner stated that
the appellant was hypersensitive as to both scars. Such
findings do not establish superficial scars which are poorly
nourished, scars with repeated ulcerations, or scars that are
tender and painful on objective demonstration. See 38 C.F.R.
Part 4, Diagnostic Codes 7803, 7804, 7805. A finding of
hypersensitivity is not a finding of tender and painful.
Thus, the evidence of record has not established that a
separate 10 percent evaluation would be in order for the
appellant's scars on his left leg.
Finally, the Board notes that the service medical records
reveal that there was no nerve damage involved with the
appellant's inservice injury. Thus, consideration of the
service-connected residuals of fragment wound to left thigh
under the Diagnostic Codes that address peripheral neuropathy
would not be appropriate.
The appellant is competent to report his symptoms; however,
to the extent that he has stated that his service-connected
residuals of fragment wound to left thigh is worse than the
10 percent evaluation contemplates, the medical findings do
not support his contentions. See Cartright v. Derwinski, 2
Vet. App. 24, 25 (1991) (holding that interest in the outcome
of a proceeding may affect the credibility of testimony).
The Board attaches far greater probative weight to the
clinical findings of skilled, unbiased professionals than to
the appellant's statements, even if sworn, in support of a
claim for monetary benefits. The appellant has identified no
legal or factual basis to award an increased evaluation other
than his request that an increased evaluation should be
assigned.
For the reasons discussed above, the Board finds the evidence
to be against entitlement to a disability rating in excess of
10 percent for service-connected residuals of a fragment
wound to the left thigh. The evidence in this case is not so
evenly balanced so as to allow application of the benefit of
the doubt rule as required by law and VA regulations. 38
U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3
(1999).
ORDER
Having found the claim not well grounded, service connection
for a left hip disorder as secondary to service-connected
residuals of fragment wound to left thigh is denied.
An increased evaluation for residuals of fragment wound to
left thigh is denied.
P.M. DILORENZO
Acting Member, Board of Veterans' Appeals